The root of the problem, it should be noted, is the Supreme Court’s inability to agree with itself from one year to the next what the Constitution requires. Jurek said the Texas system was facially constitutional even though there was no mechanism other than the special issues for considering mitigating circumstances. Penry I said it wasn’t constitutional as applied to Penry, in broad language implying it would not be constitutional in many and perhaps most cases, even while denying it was creating a new rule. Johnson gave a narrow reading to Penry I‘s broad language, rejecting the dissent’s contention that “full” consideration must be given to mitigating circumstances. Penry II quoted the Johnson dissent for the main proposition rejected by the Johnson majority.

So, the Texas courts have not followed Supreme Court precedents? No one should be surprised. It is not possible to follow all the Supreme Court’s precedents in this area, given their contradictions.